from the government-perturbed-by-amicus-sass-and-backtalk dept

The appointment of a FISA Court amicus to argue on behalf of the American public -- part of the surveillance reforms contained in the USA Freedom Act -- seems to be working out pretty well. FISC judge Michael Mosman appointed Washington DC attorney Preston Burton to examine one issue facing the court: whether the NSA can retain the bulk records it collected under Section 215. According to the new limitations, the NSA must immediately destroy any records that are not "foreign intelligence information." Unsurprisingly, the NSA is reluctant to begin this purge.

There are a certain amount of records the NSA must retain as they are part of ongoing lawsuits against the government. The NSA has stated that it's impossible to separate the phone records relevant to the lawsuits from the rest of the collection.

Why has the government been unable to reach some stipulation with the plaintiffs to preserve only the evidence necessary for plaintiffs to meet their standing burden? Consider whether it is appropriate for the government to retain billions of irrelevant call detail records involving millions of people based on, what undersigned understands from counsel involved in that litigation, the government's stubborn procedural challenges to standing- a situation that the government has fostered by declining to identify the particular telecommunications provider in question and/or stipulate that the plaintiff is a customer of a relevant provided.

Faced with these pointed questions, the government chose to deploy its favorite dodge.

The government does not answer those questions. Instead the government reinvents the questions as suggesting:

...that the Government disclose national security information concerning the identity of providers, information subject to a pending state secrets assertion, is inappropriate, and the suggestion by amicus that the government stipulate to Article III standing in those cases is unfounded as a matter of law. Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable.

Rather than answer questions about its alleged inability to retain only the records responsive to ongoing litigation, the government opted to raise the "national security" shield in hopes of shutting down this line of inquiry entirely.

Burton is unimpressed:

Amicus 's proposed inquiries were not quite the calamities the government conjures to avoid answering the questions. They were simply inquiries fostered by this Court's own observations that the preservation requirements conflict with minimization procedures designed to protect privacy rights of millions of uninvolved U.S. persons and to appropriately balance those privacy interests with the government's foreign intelligence justification for obtaining the information in the first place.

As Burton points out, the specifics of this program have been the subject of much public discussion, thanks to leaked documents which exposed the reach and breadth of the Section 215 collection. To pretend it's all still a huge secret is ridiculous. And yet, the government insists on doing so. The government's stance -- and its ongoing control of information it believes should be treated as "secret" -- leads to this incredible (in all the wrong ways) bit of redaction in Burton's response brief.

After censoring three sentences regarding "public discussion" of the program, the NSA allows Burton to have the last word on the most technologically-adept intelligence agency in the world claiming it's impossible to separate records it's been ordered to retain from records it's been ordered to destroy.

The government also states, without more, that limiting the records it holds to those belonging to plaintiffs is "entirely unworkable." The Court may fairly probe whether that conclusory declaration is sufficient or meaningful. It would perhaps be expensive and time-consuming to segregate the data or otherwise pare the archive but that is a choice the government may be required to make in deciding whether to continue to burrow in on its standing and procedural challenges.

It's unclear as to how much of an effect the presence of an amicus will have on domestic surveillance programs going forward. It's also unclear as to how much of an input these appointed positions will have going forward. Here, the amicus was limited to addressing the issue of Section 215 bulk record retention/destruction. It's unlikely an amicus will be on hand to challenge government applications for telco record production -- at least not in every case.

But Burton's presence has served an important purpose. For the first time, the government's assertions are being challenged by someone other than a FISA judge. Judging from the tone of the government's response to the first brief, it's not thrilled it has to show its work when it comes to record collection and retention. If nothing else, the presence of an amicus may finally force the government to use something more creative than "national security" when justifying its actions.

from the bulk-collection-paused? dept

The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches.

But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled.

Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act.

Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.

The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown. [As pointed out by Julian Sanchez, the opinion "pointedly" does not authorize this. What it does is provide for the collection as amended by the USA Freedom Act, which obviously isn't the same thing, and isn't how the government has interpreted the 180-day transition period.) What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself.

First, it understatedly notes that things are all kinds of screwed up at the moment.

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion.

Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).

This would, of course, be the statute cited by the Second Circuit Court as not allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions.

Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release of authorization orders, but there's no order attached to this opinion.

Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments. If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.

If so, this would be the first time since 2009 that the bulk collection has been suspended for any length of time, which is significant on its own.

The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF's behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.

The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.

The government's desire for secrecy extends even further than the NSLs' gag orders. This secrecy has now spilled over into what would normally be the public's domain.

The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.

Whatever the government's stated reasons for requiring the brief to be filed under seal, it's clearly wrong.

“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”

The government doesn't know when to quit. It's sealed brief requirement makes about as much sense as government agencies' initial reactions to the first few leaked NSA documents -- instructing their employees to not look at publicly-available information because the documents were supposedly still "classified." As if that designation made any sense under the circumstances.

This is the same sort of reasoning: NSLs are super-secret and therefore, anything related to these should be withheld from the public, even if the brief contains nothing more than publicly-available information.